NY Times Letter to the Editor by Evan Wolfson

The pivotal exchange in one of the lawsuits now challenging the exclusion of same-sex couples from marriage shows that the opponents of gay people’s freedom to marry still can’t give a real answer to the key question posed in yet another court by yet another judge: “What would be the harm of permitting gay men and lesbians to marry?”

The anti-gay forces’ lawyer, Charles J. Cooper, replied, “Your Honor, my answer is: I don’t know ... I don’t know.” Mr. Cooper eventually told the judge that the government should be able to exclude gay couples from marriage in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”

But even Justice Antonin Scalia, no friend of equality for gay people, wrote in Lawrence v. Texas: “What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”

The reason smart lawyers like Mr. Cooper don’t give a better answer to why marriage discrimination should be allowed to continue is that there isn’t one.